A Landmark Win for LGBTQ+ Families in Australia!

A recent decision of the ACT Supreme Court confirmed that changes to the Parentage Act 2004 (ACT) enacted in 2024 can reach back to recognise certain surrogacy arrangements made before the law changed. The ruling allowed a gay couple to be declared the legal parents of a child born via a traditional surrogate who lived outside the ACT, despite the arrangement not meeting the older statutory requirements at the time of conception and birth.

Why this decision matters

The 2024 amendments to the Parentage Act modernised Australia’s earliest surrogacy legislation. They corrected practical and legal problems that had accumulated over two decades, and—for the first time in the ACT—explicitly permitted traditional surrogacy to be recognised under the Act. This creates a clear path for intended parents whose child was conceived with the surrogate as the genetic mother and who previously could not obtain a parentage order in the ACT.

The court’s decision confirms that transitional provisions in the new legislation can validate earlier arrangements that would have failed under the old law. That recognition gives the child and the intended parents the legal certainty they need across Australia.

Case facts in brief

• A gay male couple from the ACT engaged a traditional surrogate who did not live in the ACT.
• The in vitro fertilisation and surrogacy arrangements were carried out outside the ACT and, at the time, the parties expected to obtain recognition under New South Wales law.
• The couple ultimately waited for the ACT legislature to pass reforms to the Parentage Act and then filed for parentage orders under the new 2024 Act.
• The ACT Supreme Court, with Acting Justice Mueller presiding, granted the parentage orders using the transitional provisions of the amended Act.

Key legal changes that enabled the outcome

Three elements of the 2024 amendments were particularly significant.

1. Recognition of traditional surrogacyPreviously, where the surrogate was the genetic mother, intended parents in the ACT could not obtain a parentage order. The reform changed that, allowing parentage orders in appropriate circumstances even when the surrogate has a genetic link to the child.
2. Removal of rigid IVF-location requirementsThe updated Act allows intended parents to seek parentage orders regardless of where IVF took place. This is an important practical change for people who travel interstate or overseas for fertility treatment.
3. Transitional provisionsThe Act contains clauses intended to pick up existing arrangements that would otherwise fall through the cracks. The court accepted that the couple’s circumstances fit within those transitional provisions, thereby permitting recognition despite non-compliance with the older statutory regime.

What the court actually decided

Acting Justice Mueller made orders recognising the couple as the child’s legal parents. That recognition operates across Australian jurisdictions for most legal purposes. As the judge noted, the child’s parentage is now recognised Australiawide, which secures the child’s legal status and the parents’ rights.

The child’s parentage is recognised Australiawide.

Practical implications for intended parents and surrogates

This outcome has immediate and practical effects for families formed by surrogacy:

• Birth registration and identity — parents can seek recognition on birth records subject to the usual processes.
• Parental rights and responsibilities — legal parentage confers decision-making authority, parental obligations and entitlement to parental benefits and protections.
• Cross-jurisdictional certainty — once recognised by the ACT Supreme Court under the amended Act, recognition is effective throughout Australia for most legal purposes.
• Access to services — statutory recognition helps access entitlements such as Medicare, Centrelink family payments and passport applications.

What this does not change

The decision does not provide a blanket endorsement for all historic surrogacy arrangements. Each case will still turn on its facts, the terms of the surrogacy arrangement, medical and genetic evidence, and whether the transitional provisions apply. The presence of adequate documentation, clear intention of the parties, and compliance with welfare considerations remain crucial.

Practical checklist for anyone involved in surrogacy

For intended parents, surrogates and advisers planning or reviewing arrangements, the following checklist summarises practical steps to reduce legal risk:

• Obtain specialist legal advice early and from a practitioner experienced in surrogacy and parentage law.
• Keep comprehensive records of agreements, medical treatment, counselling and consent forms.
• Document the intentions of all parties at every stage to support any future parentage application.
• Consider jurisdiction and whether local legislation or transitional provisions will affect recognition.
• Where possible, seek parentage orders promptly once legislation or eligibility criteria are satisfied.

Broader impact on LGBTQ+ parenting in Australia

The decision reinforces an important principle: surrogacy law should protect the best interests of the child and provide legal certainty to families irrespective of the parents’ genders or how conception occurred. By enabling parentage recognition in circumstances that previously left intended parents in legal limbo, the ACT amendments and the court’s interpretation promote inclusivity and reduce the fragmentation that can arise from differing state and territory rules.

Next steps for practitioners and policymakers

Legal practitioners should familiarise themselves with the 2024 amendments and the transitional provisions. Policymakers in other jurisdictions can observe how carefully drafted transitional clauses and clear definitions can resolve gaps created by prior laws. Continued harmonisation across states and territories would further reduce uncertainty for families formed via surrogacy.

About Stephen Page

Stephen Page is widely recognised as Australia’s leading surrogacy lawyer. He specialises in family and surrogacy law, regularly appearing in landmark matters and providing expert advice to intended parents, surrogates and legal practitioners. His work focuses on securing legal certainty for families and shaping practical, child-centred outcomes in a complex and evolving legal landscape.